Polygamous marriages

Drafters should take steps to prohibit and eliminate polygamous practices without exception for religious and customary systems that allow polygamy.

Drafters should consider prefacing laws prohibiting polygamy with the international legal obligations, as well as policy arguments, requiring states to modify such practices. Article 5(a) of CEDAW obligates States Parties to “modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.” Both the Human Rights Committee and the Committee on the Elimination of Discrimination against Women have found that polygamous marriages discriminate against women and recommend their prohibition. The practice of polygamy violates Article 3 of the ICCPR, guaranteeing equal rights for women and men, violates a woman’s right to equality in marriage, and has severe financial effects on her and her children. CEDAW, Gen. Rec. 21, Para. 14, Gen. Rec. 29. Moreover, polygamy places women and girls at greater risk of contracting HIV/AIDS when their husband has multiple sexual partners, and they have less power to negotiate safe sex. It also risks excluding additional wives from asserting their marital and inheritance rights.

Drafters should ensure that laws prohibit polygamous marriages under both state and non-state systems. In doing so, it is essential that states recognize parties may circumvent laws by consummating multiple marriages under different systems. For example, a husband may marry under the civil law system, then take a second wife through a Nikoh/Nikkah, or Muslim, ceremony. Laws should prohibit multiple marriages, as well as prohibit marriage under one system if the party is already married under another system. In other cases, a husband may be living in an unregistered union with multiple wives. Where no official marriage ceremony has taken place, drafters should consider adopting laws on common law marriage to hold polygynous husbands accountable. A common law marriage recognizes an informal union as a marriage although no formal civil ceremony or contract has been executed nor the marriage registered; such laws can be used to establish the existence of these de facto marriages.

Under Sharia law, men may have up to four wives while women may only have one husband. The Mormon Church also allowed polygamy until the late 19th century, when it renounced the practice and now ex-communicates any members who practice it. South Africa prohibits bigamy in civil marriages, but allows for multiple customary marriages under the Recognition of Customary Marriages Act (Art. 2(3)). South Africa’s law requires a husband, who is already in a customary marriage and seeking to enter an additional customary marriage, to obtain court approval of a contract governing the “matrimonial property systems of his marriages” (Article 7(6)).

CASE STUDY: The U.S. state of Utah has taken steps to combat the practice of polygamy, including adopting a constitutional prohibition against polygamy and hiring an investigator to investigate secret factions. Still, practices of polygamy still continue and must be sought out and prosecuted. Utah recently prosecuted and convicted Tom Green of four counts of bigamy under Utah law. Green sought to circumvent laws against bigamy by marrying each of his wives in Utah and obtaining divorces from them in Nevada. Prosecutors sought a court order to solemnize his marriage to his wife, thus laying the foundation for bigamy charges for his other four wives. Under Utah Code Ann. §76-7-101(1), a person commits bigamy when he marries or cohabitates with another person, with the knowledge that he has a husband or wife or the other person has a husband or wife; importantly, extramarital cohabitation can constitute the actus reus necessary for bigamy. The prosecution established that, despite Green’s divorce decrees, he was effectively married to more than one woman under Utah’s common law marriage law, Utah Code Ann. §30-1-4.5. Under the common law marriage provision, a legal marriage can be established upon a court order that finds that a man and woman:

(a) are of legal age and capable of giving consent; (b) are legally capable of entering a solemnized marriage under the provisions of this chapter; (c) have cohabited; (d) mutually assume marital rights, duties, and obligations; and (e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife. Utah Code Ann. §30-1-4.5 (1). In addition, prosecutors charged and convicted him of felony rape of an underage girl, who he later married.

Drafters should include provisions which provide aid and assistance to wives of polygynous husbands. The CEDAW Committee’s General Recommendation 29 reaffirms the goal of abolishing polygamy and makes clear that “, with regard to women in existing polygamous marriages, States parties should take the necessary measures to ensure the protection of their economic rights.” While prohibiting polygamous marriages is important to promoting women’s human rights, drafters should consider the negative consequences it may hold for additional wives whose marriages go unregistered or unrecognized because of their illegal nature. As a result, these women may have no legal claim to marital property, cannot claim child support in the event of a divorce, or may be excluded from inheritance. Polygamy may also drive families to live in isolated areas, which limits victims’ access to information and services and requires greater vigilance by the state.

Drafters should ensure that laws require religious leaders who perform marriage ceremonies first verify that the couple possesses a government-issued marriage certificate. Public education, outreach and monitoring are essential to facilitating compliance with this requirement. (See: Marriage Vows Not Always Enough in Tajikistan, Institute for War and Peace Reporting, 2009) For example, the Tajik President issued an oral instruction to amend a 2007 Law on Traditions that would require mullahs to require a civil marriage certificate before performing a nikoh marriage.

Illustrative Examples:

Sierra Leone: Sierra Leone’s Registration of Customary Marriages and Divorce Act (2007) prohibits an individual, who is already married under the Christian Marriage Act, the Muslim Marriage Act or the Civil Marriage Act, to enter into a customary marriage with another person. Art. 3(1). The law likewise prohibits the reverse situation, barring anyone in a customary marriage from entering into a Muslim, Christian or civil marriage. Art. 4(1).

CASE STUDY: South Africa’s Recognition of Customary Marriages Act (RCMA) recognizes marriages under customary practices, which may include polygamous marriages. Customary marriages existing prior to the enactment of the RCMA are recognized under customary laws while those entered in to after enactment of the RCMA are recognized by the government only if the parties abide by the provisions of the RCMA. The RCMA requires that the spouses be over the age of 18 (or have parental consent) and that all parties agree to the marriage. The RCMA allows men to seek approval for another spouse, but does not extend the same to women. If the man is already in a customary marriage, his existing wife or wives must agree to the new marriage and be represented in discussions related to division of marital property. While one of the primary purposes of the RCMA is to provide a mechanism to protect the rights of existing spouses when a new polygamous relationship is proposed, it institutionalizes practices that discriminate against women and which are in contravention of the Bill of Rights in South African constitution which states:

1. Everyone is equal before the law and has the right to equal protection and benefit of the law.

2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

Men are permitted to marry more than one woman, while a similar rule does not apply to women. There may be little incentive, aside from honor, for men to register subsequent marriages in a patriarchal society where polygamy is not illegal. Theoretically, the property rights of the women in these relationships may be protected if the parties abide by the RCMA, but the unequal bargaining power of women due to their socio-economic or wife status renders this law discriminatory in impact. Legislation should ensure that conflicts between customary and formal laws should be resolved in a manner that respects women’s human rights and principles of gender equality.